November 1, 2005

On the conlawprof email list today, there was some talk about my NYT op-ed [permanent link to full article here], which led me to write:

I'm mostly just arguing against the mental shortcuts embodied in the Scalito concept. We've got a 15 year record that deserves respect and reading. To pigeonhole a man like this offends me. What I most want is to see strong judicial minds on the Court, not mediocrities. I hate to see the political process work out to put bland, weak persons on the Court. I want strong liberals as well, by the way. I miss the passionate liberals of yore.

That caused another listmember to observe that you have to get a liberal president elected first. I responded, "Do you win elections by fighting down a man like Alito?"

That provoked an interesting response from Texas lawprof Sanford Levinson, which he gave me permission to quote here:

I don't think that Alito has much to do with winning or losing the next election. Rather, the arguments for fighting his nomination to the bitter end (in spite of what seem to be genuinely attreactive qualities in the man) are twofold:

a) This is drawing a line in the sand with the current Republican leadership and its take no prisoners style of governance. If they want this nomination, they're going to have to "go nuclear," which means, ironically, that a Democratic President would in fact be able to make some liberal nominations. As I wrote earlier, I just don't trust the current Republican leadership to play fair with a Democratic President in this regard, which is why I think it's utterly beside the point that Ann would like some strong liberals as well as strong conservatives on the Court. There are a lot of things I'd like, but the question is how do you get that happy result, and it's not by having faith in the good will of people who have been demonstrating for the past decade that they have only contempt for those who disagree with them.

b) The brilliance of the Bush nomination strategy (save for Miers) is that he's trying to tie up the Court for the next 25 years. The conservatives are relative youngsters, given todays lifespans. The most likely next retirees are Stevens and Ginsburg. With Roberts, Alito, and Thomas on the Court, that is a strong conservative presence for the next 25 yeas, when Alito will be only 80. It's a good calculation that Republicans will be able to make two appointments among the successors to the other six justices, when the time comes. This is one reason why life tenure on the Supreme Court is so pernicious. If we were talking about a single 18-year term for Alito (and if everyone else were serving 18-year terms), then I'd be open to Ann's generosity of spirit, which speaks well for her. But, again, that's not the world we live in.

I certainly agree that life tenure makes Supreme Court appointments especially important, and I think there is something to be said for switching to 18-year terms now that people live so very long. I do think there are problems with set terms: We'd know which seats were going to open up as we approached each presidential election, and that might be a bad thing. And since justices could also quit or die instead of serving out their terms, you couldn't keep the terms neatly staggered. I would prefer to try to establish a cultural norm that justices should not stay too long on the Court. We could scrap this notion that it's inappropriate to criticize them for clinging to their spot into extreme old age and ill health. Apply some moral suasion for a while, and see how that goes before trying to amend the Constitution.

But Levinson's main point is that Democrats can't trust Republicans to play fairly. Rather than participate in the creation of a new era of confirmations in which senators respect well-credentialed nominees, Democrats ought to force the nuclear option. Then, assuming the Democrats have a majority in the Senate, their President will have his choice, with no need to expect the Republicans to do the right thing. I think it would be a terrible shame to think that colleagiality in the Senate has fallen into such a state of irreparable mistrust. If the Democrats treat Alito fairly, at some future date they will be able to point to what they did and demand the same for a Democratic President. If they fight "to the bitter end," how will things go in the future? Levinson's view depends on a very pessimistic vision of where we are now. Ironically, the pessimism of the Democrats damages their electorial prospects.

I stand by the implication in my question Do you win elections by fighting down a man like Alito?

It's easier to be nasty now with the expectation that said bad behavior will not harm you in an election 3 years from now when you have a media that is sympathetic. People forget, and others who cry "Remember when you were a jerk?" are looked on as whiners.

I don't think the Dems have anything to lose by fighting to the bitter end here.

Not to sound like a Republican talking point, but the last Democratic presidential Supreme Court nominee (Ginsburg) received like 97 votes (many of them the same Republicans Levinson now says he doesn't trust.

This despite Ginsburgs connections with the ACLU and her unwillingness to answer a lot of questions.

That isn't to say Republicans have played it straight (they originated the minority party muscle flexing when it comes to judiciary appointments).

But I do believe in terms of SCOTUS, the Democrats have taken the very, strong lead in untrustworthiness.

The real problem seems to be that Democrats want to use the courts to enact an agenda that they can't get support for through the democratic legislative process because they have lost their majority in both houses of Congress.

I am not necessarily trying to pile on Sandy Levinson, but it is interesting to me that as I read his statement, I was immediately ready to post a comment in response.

Lo and behold, when I moved to the comments section, I found that a number of others had said the same thing I intended to note, namely that the left's whine that it cannot trust the right to play fair comes across as laughable given the single digit vote counts against Ginsburg and Breyer.

If the accepted wisdom becomes that Democrats cannot follow basic rules of civility (and I think they are in danger of that), they will lose votes and deservedly so.

He seems to assume that the Democrats will filibuster. I'm not so sure even the hysterical Democrats will do that.

Ditto what others have said about the liberal nominees of yore. I do note that the "line in the sand" talk is coming from someone who objects to what he deems a Republican confrontational style! Roberts and Alito could not be more qualified; the Democrats' only objection relates to liberal litmus tests.

Why are Dems so afraid of engaging the electorate on the worthiness of their agenda? That is Mr. Levinson's real dilemna.

Prof Levinson is advocating a preemptive ideological strike against a qualified judicial nominee. I thought only conservatives believe in the doctrine of preemption (particularly when the stakes of not preempting are high).

Fighting Alito will hurt the Dems. Nothing can change the fact that the dems will be the first to strike, and the "middle" doesn't like the one who starts the fight.

If the tens of millions of dollars burning in the pockets of Ralph Neas and Nan Aron don't get used on this nomination the hard left is going to be very frustrated. The idea that those rascally Republicans won't play fair with the church mouse Dems says a lot about the perspective of Mr. Levenson, he should join Eric Alterman complaining about the right wing MSM.I hope the Dems do try to mount a filibuster -- I can't think of anything else that could save Santorum's seat in PA, or take out Nelson in NE, Baucus in MT, etc. This is a fight we need to have, let the Dem's throw another temper tantrum, like they did today in the Senate, saying that they represent the mainstream against extremists because they want to expunge religion from public life, Boy Scouts from public buildings, and "under god" from the pledge of allegiance.

Depends on how he comes accross. Does he end up looking more like Bork or even Scalia, with a rigid, certain and arrogant tone. Or does he come across like Roberts, balanced, competent, pragmatic. If he comes accross like Bork/Scalia, you can win elections by fighting that to the end. If he comes accross like Roberts (which is what I suspect), you will lose elections by fighting him.

I hope the confirmation hearings don't focus exclusively on abortion rights. There is a record, like you say, to go through and evaluate. Frankly, if Roe is over turned by Mr. Alito, assuming he's confirmed, I think hell will break loose and Republicans will be thumbscrewed by the public, and become a minority party again. What event could rouse the women's movement from it's slumber more than by overturning Roe against Wade? I have seen little written about the political fallout and backlash from a conservative Supreme Ct. turning back the clock to a time when abortions were illegal.

I agree with most of the commenters that the suggestion that Democrats can't trust Republicans to play fair on judicial nominees - to hear dems tell it, you'd think that the verbified nominee was Breyer rather than Bork.

In my view, the next Democratic President's nominee - which should arrive just about the time Justice Thomas is retiring, at this rate - should be subjected to exactly the same sort of criteria that the Democrats now advocate. This knife is sharp on both sides.

The Republicans did not start "the minority party muscle flexing when it comes to judiciary appointments". They flexed their muscles when they were the majority in the Senate, same as the Democrats did under Reagan and Bush-41.

It strikes me that no matter what tactics the Senate Democrats use, the end will be (in their view) bitter indeed, ie. another well-spoken, thoughtful Bush nominee taking his place on the Supreme Court. The Democrats in the Senate are damned if they do fight and damned if they don't...in short, they're screwed.

But my understanding (correct me, Ann & other professional law types) is that the overturning of Roe (the substance & wisdom of which I'm not currently taking on) would not in and of itself make abortion illegal. So it's not so much about "turning back the clock" to when abortion was illegal, but rather turning the clock back as to when the matter rested with legislatures--i.e., the elective bodies DIRECTLY accountable (via voting, most important, but individual lobbying, e-mails, etc.) of all of the people. Which courts are not. By design. For excellent reason.

These hearings, and every hearing, will continue to revolve around abortion rights for the precise reason that debate was cut short and the policy matter was never allowed to make itself through the legislative (i.e. democratic) process.

Let's not conflate overturning Roe with making abortion automatically illegal, much less in all the reaches of this land. Personally, I think that even now (and even more so then, within very few years), left to the legislative bodies, most women in most situation in most states would have access to abortion. It might not be one-hundred-percent unfettered (some guiding limits in 3rd trimester and MAYBE late 2nd, as the concept of viability evolves, and as relating to reasonably interested parties--parents of minors, with a by-judicial-exception clause) but then, what the in the heck really is unfettered in real life?

But we wouldn't be tripping over the same elephant constantly at the federal and judicial level, and even in rooms where that presence manifestly should be irrelevant.

I also don't discount the possibility that the feds might take over the issue. Maybe that should be the case. But it strikes me that the states' rights vs. federal rights issue is a different situation than the legislative vs. judicial.

Until we really, really have THIS debate--we the people, through our legislatures--we can never again expect hearings on the judiciary, at least at the Supremes level, to concentrate on anything else. Does the history of the last 3 1/2 decades really support any other conclusion?

Steven, am I wrong? Wasn't there part of Clinton's presidency when the Senate Republicans were a minority? And specifically I'm remembering Clinton's lower court appointments being blocked for one reason or another. I'm literally drawing from memory here and may very well be wrong. If I am, I withdraw that part of the comment.

Certainly as someone else said on this comment "Borking" is the verb we use not "Breyering". The Democrats have certainly taken the big lead on untrustworthiness when it comes to SCOTUS nominations.

No, Adrianna, you should get out and support and work toward a grass roots political movement that changes things at the local, state and then the federal level. That is how it has always been effectively done in this country. It is tough, hard work, however.

Beating your head against the wall as Levinson is advocating won't work.

It is somewhat ironic, I think, that this is the same professor who lost to Harriet Miers in the Texas litigation over Cheney's residency. She wasn't good enough for the Supreme Court, but she kicked his butt. No wonder he is coming unhinged.

I will say that his letter to Prof. Althouse suffers from a rather condescending and intemperate tone.

The Senate Republicans were the minority for the first 2 years. Idaho's two Republican Senators blocked the nomination of John Tait for a Federal Judgeship during that period, not (at least seemingly) out of ideology but out of pique for not being consulted (and because they considered Tait to be unqualified and only getting the job because he was campaign treasurer to a Democratic Congressman).

The reason I think that is even after the Republicans took control of the Senate, Senator Craig (R-ID) set up a bipartisan committee that recommended a Democrat (who was confirmed).

Of course upon regaining that majority, the Republicans did block people like Peter Edelman, Judith McConnell and Sam Paz.

Funny, but the 'take no prisoners' style perfectly describes the liberal approach to politics from 1930 to the mid-1990s. The liberal mindset was so dominant that many "Republicans" were simply centrist liberals. There was never any resistance to enacting the liberal agenda or approving their judges.

Starting with WF Buckley in the 1950s, things began to change, albeit slowly. Now we see the consevative movement ascendant, and the left acting like a spoiled kid who no longer gets his way. Lots of whining, screaming, and stamping of feet.

Levinson seems to forget that his side lost the election in 2000 and 2004. They are no longer entitled to demand anything at all. The inability to accept reality is a destructive phenomenon, best left to children and schizophrenics.

Antics like we saw in the Senate today, and the threatened filibuster of Alito, may inspire a dwindling base of die-hards, but it isn't endearing, and can't be a realistic recipe for electoral victory.

Pogo, as usual you seem to be offering good advice to the party you're (apparently)opposed to. What are you going to do if Democrats take the high road, resist filibustering, and start winning elections again? : )

As for the charge of Republicans "playing fair" with a future Democratic president, it does seem laughable that they would do so. Still, the Dems shouldn't let that guide their behavior.

Until the Democrats grow a spine and start to act differently from their opponents—that is, to demonstrate real moral and political leadership based on a set of beliefs—they are going to continue to lose elections to the likes of Bush, Rove, Frist, & co.

If the Democrats treat Alito fairly, at some future date they will be able to point to what they did and demand the same for a Democratic President.

Good point. But one that the Republicans should have considered first: To wit:

If that were the case, you would have seen the President consult with Harry Reid or other Democrats about this nomination and find someone they could support. After all, that is what President Clinton did before his Supreme Court nominations. He didn't just announce one day, say, that he was nominating Lawrence Tribe. He talked to Orrin Hatch and arrived at mutually agreeable nominees.

To argue that the Democrats should act in good faith in hopes it will be reciprocated in the future, when the good faith that was displayed in the past has not been reciprocated now, is ridiculous on the face of it.

And Democrats are sick of the 'be a nice guy when you have the reins, then get kicked in the face when we have them' mentality on the part of the GOP, and it won't happen anymore, of that you can be sure.

If that were the case, you would have seen the President consult with Harry Reid or other Democrats about this nomination and find someone they could support. After all, that is what President Clinton did before his Supreme Court nominations.

You're just proving the point of the other side. If Clinton's nominees were "mutually agreeable," that's only further evidence of how fair the Republicans have been. Today's Democrats find all actual conservatives unacceptable, so it is not possible to work with them on a conservative nominee.

Did I miss something with all those Dems marching to the White House to tell Bush what they wanted earlier this year? They've done it and have advised, per their constitutional role. The appointment is ultimately Bush's to make, and he has allowed the Dem leadership to have their say. Now it is their turn.

But allow the voters to see their reply and judge for themselves how they comport themselves. If it is Robert Byrd quoting Old Testament stories while reminiscing about how he met his wife, then I welcome the chance to view it and make up my mind accordingly.

Which comes down to your point on the question "Do you win elections by fighting down a man like Alito?" The answer is you do if the press allows you to paint your opposition as trying to save the country from fascism, etc. If the press thinks that the religious right blocked Miers, I don't trust them to report anything correct about this nomination. And given how things have been reported in the past 5 years, Bush can win the nomination handily yet the press will skew things so badly that it is a public relations disaster for the President. Facts no longer matter--the final taste in the mouth of the public does. It doesn't matter to the Dems if Alito is approved or not...how he and the administration is perceived at the end of the process is what counts.

Eli, Bush did "consult with Harry Reid". Reid pushed Miers and Bush agreed with him and nominated her. Than Reid let Miers twist in the wind, refused to endorse her and let his senators attack her (Yes, Adriana there were Democrats who said bad things about Miers, though to be fair to them they were absolutely right).

I think it would be a terrible shame to think that colleagiality in the Senate has fallen into such a state of irreparable mistrust. If the Democrats treat Alito fairly, at some future date they will be able to point to what they did and demand the same for a Democratic President.

Of course there were Dems who said bad things about Harriet Miers (as they should have), but they didn't cause the ruckus that resulted in the withdrawal of Miers nomination unless one believes Bush's contention that it was the Democrats' request for supposedly priveleged papers.

Sanford Levinson writes that he "doesn't trust the Republican leadership" - apparently because he doesn't have "faith in the good will of people who have been demonstrating for the past decade that they have only contempt for those who disagree with them."

This is the same man who admitted contempt for his intellectual opponents in the legal academy when he wrote the following about Bush v. Gore in 2002:

“One of the things that some of us learned on December 12, 2000, was that five Republican Justices -- that is, Justices with a pre-judicial affiliation with the Republican Party who were appointed by Republican Presidents -- were willing to do whatever it took to shut down the electoral process in Florida in a context where that meant the inevitable occupation of the White House by the Republican candidate, George W. Bush.

***

To the extent that no one -- or, perhaps more accurately, very few -- on either side of the debate seem willing to grant genuine respect to both the Florida Supreme Court and the United States Supreme Court, or to both the majority and dissenters within those respective courts, it seems equally difficult to establish a way within the academy for proponents of radically different views genuinely to engage with one another. Instead, we are all tempted to move fairly quickly to viewing (and treating) one's intellectual opponents as either fools or knaves. I will confess that this is sometimes the posture I myself take ... "

Maybe - To the extent fighting Alito mobilizes the press, as well as induces the liberal Democratic base to contribute money that can be used for media buys.

The best weapon liberal Democrats have today is television and print media. Opposing Alito generates stories and headlines in which liberals can be interviewed and quoted. This makes them seem important, relevant and effective - even though their current agenda is primarily to oppose whatever Republicans want to do. Thus, fighting Alito makes liberal Democrats seem principled and energetic.

Having said this, i believe fighting Alito is a losing strategy. While it may have some benefit in the short run, Americans generally prefer politicians who stand for something positive, rather than preach doom and gloom.

When one looks at the fact that the Democrats have managed only twice, in sixty years, to convince a majority of Americans to vote for the Democratic presidential candidate, while the Republican candidate has won an absolute majority six times, one comes to the conclusion that the American people don't particularly think the Republicans are ruining the country that much more than the Democrats would/are.

So, yes, I see why you would think it's necessary to use parliamentary tactics to try to prevent the President and Senate chosen by the American people from ruining the country by appointing a Supreme Court Justice whose views on the law are utterly unremarkable for a Republican. When that fails, what other alternatives would you suggest to save the country from the choices of its citizenry?

I think the Democrats have to turn up the rhetoric to satisfy their base, but I doubt they really want to risk the nuclear option over this nomination. Bush may well have the opportunity to appoint one more justice and, with the threat of a filibuster gone, he could appoint someone who would really drive the left crazy, like Brown.

reader_iam:But my understanding (correct me, Ann & other professional law types) is that the overturning of Roe (the substance & wisdom of which I'm not currently taking on) would not in and of itself make abortion illegal. So it's not so much about "turning back the clock" to when abortion was illegal, but rather turning the clock back as to when the matter rested with legislatures--i.e., the elective bodies DIRECTLY accountable (via voting, most important, but individual lobbying, e-mails, etc.) of all of the people.

This is exactly right. The corruption (deliberate, I fancy) of exactly what Roe is has made it easy to misrepresent what the people who call for its repeal are actually saying. If you can convince the majority that Roe is this nebulous thing (which, by the way, very few people actually take the time to read), this quasi-legislative action that legalized abortion, doesn't it follow from that proposition that people who are advocating Roe's overturning are advocating criminalizing abortion? Of course it does! But if you can open the majority's eyes, if you can explain that what Roe actually did was to declare that no state could effectively legislate on a tremendously important and divisive subject, despite the Constitution leaving the matter to the states to do exactly that, then I believe that the proposition logically follows in any intelligent mind that overturning Roe simply returns the choice to the people, and to the majority.

The problem is, pro-choice people cannot have it both ways. they cannot claim that those of us who are pro-life are some tiny benighted minority, and yet rely on an explicitly countermajoritarian device to keep abortion legal. There is a disconnect here, something doesn't add up - and the reason is because, even if there is a majority for choice, in some circumstances, what there is not is a majority for what NARAL, NOW and their ilk want. NARAL and its allies don't just want abortion - they want abortion on demand, any time, any person, any reason, no restrictions, no limitations, partial birth abortion, no parental notification or consent, no spousal notification or consent, abortion on-demand, period. And normal Americans look at that position with contempt and horror. If Roe is overturned, I could believe that first (and maybe even second) trimester abortion would be legal in most states. But what it would not be is what NARAL want it to be, and what Roe currently protects: it would not be unregulated; it would be subject to sensible, reasonable restrictions, and I actually think more states than you'd imagine would choose to ban it outright.

THIS is what GOP nominees to the Supreme Court should be explaining when asked about Roe, not some insulting verbal misdirection and waffle about stare decisis.

How could you take T. Kennedy seriously? Only by indulging in a fatal level of optimism regarding his character.

Boring, Are you talking about Ted Kennedy? Or his brother on the Supreme Court, the sweetly mysterious "Fifth Kennedy," Tony Kennedy, who at this point is a more reliable liberal vote than Teddy, and purportedly poses less of a danger to his clerks?

And Adrianna, please. Your opinion on how the Miers nomination fell apart is spectacularly ill-informed, as if you'd heard something about it the other week from some guy at the butchers who had heard about it from a friend at the football game. The religious right had little or nothing to do with knocking off Miers. The conservative intelligentsia, especially legal conservatives (noticeably absent from the public debate on Miers, noticeably present in the behind-the-scenes manuevering) had a lot more to do with it. The rank & file religious conservatives actually seemed to be spouting a lot more of the invective about beltway elitism and anti-religious right motives, and appear to have been much more on board with Miers than the rest of the right.

Levinson does seem to recognize the pernicious nature of the filibuster. His advocacy of an amoral bit of political brinksmanship -- filibustering an eminitely qualified nominee in the hope of seeing the filibuster option removed from the table -- could easily backfire.

Levinson assumes a happy future in which a Democratic President sends a nominee to a Democratic Senate.

But what if a Democratic President sends a nominee to a Republican Senate that has lived through the filibustering of Alito and is in no mood for compromise.

Almaviva, I get my spectacular information from W.Bush himself. What other group was he speaking to when he kept harping about Miers' evangelical Christianity if not the religious right? Why was Dr. Dobson speaking up about a S.Ct. nominee? Why should I care about what Dobson says, why should any moderate Republican care? Your sarcastic illusion of being "in the know" isn't going to make W's public kowtowing to extremists go away, a kowtowing that has created a hostile division of the country.

Read Ann's post above. No meaningful number of senators supported her, nor the attorneys who prepped her for the hearings.

"Let's be clear about what happened with the Miers nomination. It did not collapse because of the criticism from those who wanted a committed conservative and certainly not from people who wanted someone to "do their bidding and overrule Roe v. Wade." If Bush had picked an able, well-credentialed nominee who would not clearly commit to a strongly conservative position, this group might not even have kicked and screamed. Indeed this is what Bush did in nominating John Roberts, and they did not kick and scream. But the Miers nomination did not go down not because the strong conservatives spoke up. It went down because more moderate Republicans could not support her. Her insubstantial record and her failure to present herself creditably in the one-on-one meetings ruined the nomination."

Can you really dispute this? Or are you just ticked off at Bush in general?

Adrianna: It most definitely was not religious conservatives who opposed Miers. It was people who think that nominees to the Supreme Court should actually be qualified to sit on that august body...which the late Harriet obviously was not.

Overall, I don't see the filibuster as an effective tool for the Democrats so I'm struggling to objectively address your question. However:

A filibuster could be a win for the Democrats because their liberal base is spoiling for a fight on the Supreme Court (as are many conservatives). While a filibuster might alienate independent and undecided voters - and thus seem to be a bad tactic - my belief is that politics in off-election years is more about energizing and satisfying the base than appealing to the independent or undecided voters who are less attentive in off-years and more willing to forgive and forget than the base.

In addition, I suspect that once the Democrats start fighting Alito, it will be hard to put the brakes on and stop a filibuster without seriously jeopardizing the support of the liberal supporters. They don't see many more opportunities to fight this fight, and won't be happy if the Democratic leadership caves in.

The current Democratic position is similar to the situation Republicans would have been in if GWB had not withdrawn the Miers' nomination. In other words, just as GWB had to focus on his base after the Miers' nomination, now is the time for Democrats to focus on their base even if they don't want to or believe it is counterproductive.

RCdean-Read my comments above. The notion that overturning Roe will criminalize abortion is a result of the deliberate distortion that suggests that what Roe did was legalize abortion. Both the premise and the conclusion are flawed; overturning Roe (and, presumably, Casey) will simply permit states to adopt whatever laws on abortion they see fit. Which is to say, the issue will return to the democratic arena, where the Constitution leaves it - and the majority will get its way. Pro-choice people always claim that they're the majority, so unless they know that their position is pure propaganda, they should have no problem overturning Roe.

So you're saying that Bush is kowtowing to the evangelicals by dumping an evangelical SC Nominee and replacing her with a Catholic SC Nominee. And didn't Dobson support Miers? This is strange kowtowing on Bush's part....

Initially, yes, under enormous pressure from the White House. However, there is a widely-circulated version of events that has Dobson telling the White House on the monday that the Miers pro-choie speech broke, that if Miers was still the nominee by tuesday, he'd come out against her.